[Plaintiff, Appellant] Plaintiff (Attorney: Law Firm Sidaero, in charge Attorney Cho Ae-jin)
[Defendant, Appellee] Korea Workers' Compensation and Welfare Service (근로복지공단)
[Judgment Below] Busan High Court Judgment 2021. 7. 7., 2020Nu23025
[Order]
The judgment below is reversed, and the case is remanded to the Busan High Court.
[Reasoning] The grounds of appeal are examined.
1. Relevant legal principles
A. Proof of occupational accident
1) The burden of proving the substantial causal relationship between work and injury/disease required to recognize an "occupational accident" under Article 37(1) of the Industrial Accident Compensation Insurance Act (산업재해보상보험법, hereinafter "Industrial Accident Compensation Insurance Act") lies with the worker asserting the occupational accident (see Supreme Court en banc Decision 2017Du45933, decided September 9, 2021, etc.).
2) Even if the primary cause of a disease is not directly related to the performance of duties, a causal relationship exists if work-related overwork or stress at least combined with the primary cause to induce or aggravate the disease. Such causal relationship need not be clearly proven in medical or scientific terms; proof is deemed to exist where, considering all relevant circumstances, a substantial causal relationship between work and disease may be inferred. This includes cases where an underlying or pre-existing condition, which would otherwise have permitted normal work performance, was rapidly aggravated beyond its natural progression due to excessive workload or other work-related causes. In determining the existence of a causal relationship between work and disease or death, the standard should not be an ordinary average person but the worker in question (see Supreme Court Decision 2019Du62604, decided May 28, 2020, etc.).
B. Statutory provisions
1) Article 37(5) of the Industrial Accident Compensation Insurance Act provides that "specific criteria for recognizing occupational accidents shall be prescribed by Presidential Decree." Pursuant to this delegation, Article 34(3) of the Enforcement Decree of the Industrial Accident Compensation Insurance Act (산업재해보상보험법 시행령) and [Attached Table 3] "Specific Recognition Criteria for Occupational Diseases" list, as a recognition criterion for occupational disease in the case of "cerebrovascular disease or heart disease," "cases where chronic excessive workload, due to changes in the amount, hours, intensity, and responsibility of work and work environment, has caused a physical or mental burden clearly capable of affecting the normal function of cerebral blood vessels" [Item 1(a)3)], and delegates matters necessary for such determination to be prescribed and publicly notified by the Minister of Employment and Labor [Item 1(c)].
2) Pursuant to this delegation, the Ministry of Employment and Labor Notice "Matters Necessary for Determining Recognition of Occupational Diseases as to Cerebrovascular Disease or Heart Disease and Musculoskeletal Disease" (Ministry of Employment and Labor Notice No. 2013-32, June 28, 2013, hereinafter the "Pre-Amendment Notice") provided that whether a worker's work constitutes "chronic excessive workload" should be determined comprehensively considering the amount, hours, intensity, and responsibility of work, off-duty time such as holidays and vacations, work patterns such as shift work and night work, degree of mental strain, sleep hours, work environment, and other factors including the worker's age, sex, and "health status"; and, with respect to working hours, provided that where working hours during the 12 weeks preceding onset exceed a weekly average of 60 hours (or a weekly average of 64 hours during the 4 weeks preceding onset), the relationship between work and onset is deemed strong [I.1.(c)1)].
3) The above notice was amended by Ministry of Employment and Labor Notice No. 2017-117 on December 29, 2017 (hereinafter the "Amended Notice"). In reflection of the recognition that the provisions of the Pre-Amendment Notice had been excessively strict, the Amended Notice deleted "health status," which had been included in the Pre-Amendment Notice, so that a victim's underlying condition would not be considered a factor in determining whether the worker's work constitutes chronic excessive workload. As to working hours, it lowered the reference working hours, providing that "where the weekly average working hours during the 12 weeks preceding onset exceed 52 hours, the relationship between work and disease is evaluated as increasing as working hours increase," and in particular added a provision that "in the case of shift work, work with insufficient holidays, etc., the relationship between work and disease is evaluated as strong."
4) Even where the Korea Workers' Compensation and Welfare Service issued a non-payment disposition of survivor benefits by applying the "Pre-Amendment Notice" that was in effect at the time of the disposition, in a revocation suit against such disposition, the court may consider the content and purpose of the amendment of the notice that was amended after the disposition in determining the existence of a substantial causal relationship (see Supreme Court Decision 2020Du39297, decided December 24, 2020, concerning a disposition denying approval for industrial accident medical care, etc.).
2. Determination in this case
A. Course of the case and the judgment below
1) The deceased Nonparty (hereinafter the "Deceased"), the Plaintiff's spouse, was born in 1948 and, from around July 2014, worked as a night security guard at an elementary school, single-handedly performing duties such as opening the school's access facilities, security, patrol, turning lights on and off, and closing the gate.
2) The Deceased's work pattern was as follows: on weekdays, he stayed at the school from 16:30 to 08:30 the following day, working 6 hours each time (excluding 2 hours of rest and 8 hours of sleep); on holidays, he stayed at the school from 08:30 to 08:30 the following day, working 13 hours each time (excluding 3 hours of rest and 8 hours of sleep); on both weekdays and holidays, sleep hours were from 22:00 to 06:00; and he had days off twice a month.
3) Immediately before the accident, the Deceased continued to stay at the school and worked consecutive shifts. He began night duty at 16:30 on Thursday, May 4, 2017, performed holiday work on May 5, 2017 (Children's Day), and was found unconscious in the school gymnasium around 10:00 on Saturday, May 6, 2017, and transported to a hospital, where he was diagnosed with unspecified cerebral infarction and basal ganglia hemorrhage (hereinafter the "disease in question"). He died from the disease in question on May 28, 2017. The Deceased worked 7 days during the 7 days preceding onset, with weekly working hours of 68 hours; his working hours during the 4 weeks preceding onset averaged 52 hours 45 minutes per week, and his working hours during the 12 weeks preceding onset averaged 57 hours 9 minutes per week.
4) Immediately after the Deceased was transported to the hospital, atrial fibrillation causing an irregular pulse was confirmed, and it appears that the disease in question occurred because a blood clot formed in the heart traveled through the bloodstream and blocked a cerebral blood vessel.
5) The medical opinions regarding the cause of the disease in question are as follows.
A) A physician at Dong-A University Hospital, who treated the Deceased from the onset of the disease in question until his death, stated that it was confirmed that the Deceased had not suffered from hypertension, diabetes, or other risk factors for cerebral infarction or cerebral hemorrhage, and expressed the opinion that work-related stress, etc., is believed to have caused atrial fibrillation, which induced the cerebral infarction.
B) According to the results of a medical record examination by the Korean Medical Association, apart from the Deceased's advanced age, no clear risk factor related to the onset of cerebral infarction could be identified (as to the dyslipidemia previously diagnosed in the Deceased, his recent health checkup showed cholesterol levels at a borderline or appropriate level, no trace of cardiovascular disease could be found, and although he had smoked in the past, it was presumed that he had quit smoking long ago). The Deceased's average weekly working hours during the 12 weeks preceding onset exceeded 52 hours, and although he single-handedly stayed at the school for 24 hours, he had an average of only 2.67 days off per month, which appears to constitute work with insufficient holidays; therefore, under the Amended Notice, the work-relatedness is strong. Meanwhile, since it is possible that overwork newly caused or aggravated the atrial fibrillation, it is difficult to view this as attributable to a pre-existing condition, and it was ultimately determined that work had a substantial influence on the onset and aggravation of the disease.
C) According to the results of a medical record examination by a pulmonology physician at Kosin University Gospel Hospital, while introducing the general information that aggravation of chronic obstructive pulmonary disease can medically induce atrial fibrillation, and that since most people with pulmonary disease are elderly and have a smoking history, cerebral infarction can occur even without overwork or stress, the physician stated that as to whether the severe chronic obstructive pulmonary disease diagnosed in the Deceased around August 2015 is related to the occurrence of the disease in question, an examination by a neurology specialist in cerebral infarction would be necessary.
6) Around October 2017, the Defendant, regarding the Plaintiff's claim for payment of survivor benefits and funeral expenses, determined that it was difficult to recognize a substantial causal relationship between the Deceased's death and his work based on the Pre-Amendment Notice, and made a non-payment decision (hereinafter the "disposition in question"). Immediately after the disposition in question, the Amended Notice came into effect, but the Industrial Accident Compensation Insurance Reexamination Committee rejected the Plaintiff's request for reexamination based on the "Pre-Amendment Notice," without taking this into account.
7) The court below, having recognized only that the Deceased's working hours were somewhat long—68 hours per week, 52 hours over 4 weeks, and 57 hours over 12 weeks—and that there were factors equivalent to shift work, determined that it was difficult to recognize a substantial causal relationship between the Deceased's work and the disease in question, considering that: the Deceased's security work was intermittent in nature, allowing him to sleep for 8 hours while on duty, and he was guaranteed two days off per month; there were no circumstances indicating that his workload had meaningfully increased or his work environment had changed around the time the disease occurred, or that any event had occurred that would have imposed a particular mental or physical burden; and the Deceased had been diagnosed with chronic obstructive pulmonary disease.
B. Judgment of the Supreme Court
1) As noted above, even where a non-payment disposition of survivor benefits was made before the Amended Notice took effect, the court may consider the Amended Notice, which took effect after the disposition, in determining the existence of a substantial causal relationship. In this case, the Deceased's average weekly working hours during the 12 weeks preceding the onset of the disease in question exceeded 52 hours, and the Deceased's work involved insufficient holidays, constituting a factor aggravating the workload (in particular, he worked 7 days during the 7 days preceding onset, and was in the midst of consecutive shifts of Thursday night duty followed by Saturday and Sunday holiday work). Accordingly, it appears that the requirements of Amended Notice I.1.(c)2)③, under which the relationship between work and disease can be evaluated as strong, are satisfied.
The nature of the Deceased's work was to stay overnight at the school, single-handedly performing night security and patrol duties over a large building and grounds, working the entire day on holidays, with only two days off per month. Even if this is evaluated as intermittent work, it could in itself induce fatigue and stress due to disruption of daily life and biorhythm, and could negatively affect health.
2) None of the medical opinions noted above regard the Deceased as having had heart disease or cerebral disease. Although the Deceased was diagnosed with chronic obstructive pulmonary disease around 2015, it has not been established whether this has a substantial causal relationship with the disease in question, and no medical opinion finding such a causal relationship can be found in the record.
C. Nevertheless, without sufficiently examining the objective characteristics and content of the security work performed by the Deceased as described above, the medical opinions regarding the relationship between the disease in question and his work, and the provisions of the Amended Notice, the court below concluded, based solely on the circumstances stated in its reasoning, that it was difficult to recognize a substantial causal relationship. Such determination by the court below contains an error affecting the judgment by misunderstanding the legal principles concerning the substantial causal relationship required for occupational accidents and by failing to conduct the necessary examination.
3. Conclusion
Therefore, the judgment below is reversed, and the case is remanded to the court below for further examination and determination. This judgment is rendered as set forth in the Order, with the unanimous agreement of the participating Justices.
Justice Cheon Dae-yeop (Presiding Justice), Justice Cho Jae-yeon, Justice Min Yu-sook (Justice in charge), Justice Lee Dong-won